Age Discrimination

Both federal and state laws prohibit employers from discriminating against employees because of their age. Under the Massachusetts Fair Employment Practices Act (M.G.L. 151B), companies may not take an adverse employment action against an employee age 40 and over with respect to any term, condition, or privilege of employment based simply on age. The federal Age Discrimination in Employment Act of 1967 (ADEA) provides similar protections to employees age 40 and over. An adverse employment action may range from the most obvious in the form of discharge or layoff to the more subtle, such as where an employee is passed up for a promotion or training opportunity, paid a lower salary, or provided with fewer benefits.

Older employees may be negatively affected where employers seek to cut costs and reduce expenses. Thankfully, Congress acknowledged that the cost of providing certain benefits to older workers can be greater when compared to providing those same benefits to younger workers. Higher expenses may disincentive employers to hire older workers. To address this problem, the Older Workers Benefit Protection Act of 1990 (OWBPA) amended the ADEA in order to prevent employers from denying benefits to older employees.

Was Age Discrimination a Factor?

In many cases, the plaintiff lacks direct evidence of discrimination and must prove discriminatory intent indirectly by inference. The Supreme Court has created a structure for analyzing these types of cases through the use of circumstantial evidence, commonly known as the McDonnell Douglas burden-shifting formula. At the outset, the employee carries the burden of establishing a prima facie case of age discrimination. Under this analysis, an employee must establish that:

He or she is 40 years of age or older,

He or she is qualified to perform the job function required by the position,

He or she suffered an adverse employment action, and

He or she was replaced by someone who is “substantially” younger.

Where an employee is successful in satisfying these four elements, the burden then shifts to the employer to allege a legitimate, non-discriminatory reason for the adverse employment action. To ultimately prevail on an age discrimination claim, an employee must show that the defendant’s proffered reason is pretextual. Where successful, employees may recover a panoply of legal remedies including back and front pay, emotional distress damages, punitive damages, injunctive nrelief in the form of reinstatement, and attorneys’ fees.